One of the state district judges presiding over the Waco Twin Peaks bikers cases has reversed his decision to extend the term of a grand jury selected under the old method of selecting grand juries. The judge will now comply with a McLennan County, Texas, order that ends on July 8th, the much criticized practice of selecting “pick-a-pal” grand juries. This grand jury will likely decide the fate of some, if not all, of the 177 bikers arrested on May 17th after the Twin Peaks shootout.
Although the judges and the McLennon County district clerk approved a plan on June 11 requiring that grand juries be selected in the same way civil juries are selected, Judge Matt Johnson signed an order on June 30th extending the term of the grand jury who would hear the Twin Peaks shooting cases. The term of this grand jury was set to expire on June 30th. Judge Johnson was reported to have been one of the judges on June 11th who approved the plan to change the system in which grand jurors are selected in McLennan County, Texas.
The Waco Tribune-Herald reported that the order extending the grand jury term signed by Judge Johnson stated it was “for the purpose of concluding the investigation into the incident at Twin Peaks, allegations and circumstances surrounding such incident.” Grand jury proceedings are secret and it is unknown whether this grand jury had started hearing evidence in any of the Twin Peaks cases.
At that time, Judge Matt Johnson was quoted as saying there was no problem in the county under the previous system. He reportedly said, “I understand Texas is the only state that allows for the key-man system, but I don’t think people in the other 49 states are any happier with the results of their grand juries.”
The other criminal court judge in the county, Judge Strother, was reported along with Judge Johnson to have said it remains to be seen whether the new law will increase diversity on grand juries.
A lawyer for one of the arrested bikers, Matthew Alan Clendennen, filed an objection to the holding over of what he referred to as the “Pick-A-Pal” grand jury. He argued that using the “hold over pick-a-pal grand jury” violated the Texas Code of Criminal Procedure and the due course of law provision to the Texas Constitution.
In Clendennen’s motion (shown below), he urged that the State had gone to great lengths to argue that the district attorney’s office did not have to promptly produce discovery despite the Michael Morton Act. The State argued the investigation would take months to complete. He wrote, “In light of these claims, it is difficult to understand how the pick-a-pal grand jury would have sufficient time to carefully consider the 177 cases.” He concluded, “in light of the State’s comments at the motion to quash hearing, it appears questionable as to whether the State has actually begun presenting substantive evidence to the current pick-a-pal grand jury.”
The Michael Morton Act provides that a prosecutor must produce and permit the inspection and copying and photographing of evidence by the criminal defense. The Act is named after a case where a prosecutor, who later became a judge, was found to have had knowingly withheld evidence of Morton’s innocence. DNA evidence exonerated Morton of his wife’s murder 25 years later. The judge lost his law license and served jail time.
On June 18th of this year, Governor Greg Abbott signed into law House Bill 2150. It amends the Texas Code of Criminal Procedure to change how grand juries are selected in Texas.
Grand juries have been selected in Texas by a system wherein criminal court judges appoint commissioners who then nominate individuals to serve as grand jurors. The system has received much media attention for perceived injustices in the system, including an absence of racial diversity, and connection of the judges with the grand jurors. Federal courts stopped the practice of picking jurors in this way decades ago. Grand jurors will now be selected like jurors in civil cases, from driver’s license and voter registration lists.
Lisa Falkenberg, a columnist with the Houston Chronicle, was named a winner of the 2015 Pulitzer Prize for Commentary for her writings about the grand jury system in Texas. The Pulitzer Prize is the most prestigious award a journalist can receive.
As reported by the Chronicle, Falkenberg received the award for her work on a series of 10 columns, many of which focused on “a corrupt and abusive grand jury system.” Many of these articles highlighted the case of Alfred Dewayne Brown. Brown was indicted for the murder of a Houston police officer and served time even though there was allegedly evidence that confirmed his alibi. Brown was released from death row in June of this year.
McLennan County District Clerk Jon Gimble told the Waco Tribune-Herald that 100 people have been summoned to appear on July 8th for the selection of a jury panel. The first 12 qualifying jurors and two alternates will then be impaneled. The grand jury panel will serve for a three-month period. The period can be extended under the new law for a period not to exceed 90 days if necessary to complete any investigation of matters before it.
Breitbart Texas has been reporting on the fate of the Twin Peaks bikers, including the $1 million bonds set by the judges for all of the bikers, motions to remove the judges for bias, and the “fill-in-the-blank” method for alleging probable cause against all 177 bikers. After a hearing on the motion to remove three Waco judges for bias, the attorney who filed the motion told Breitbart Texas he had in effect been told “You Sir, are poured the f*** out.”
One of the judges has signed a gag order preventing the parties and attorneys from talking to the press, also reported by Breitbart Texas. The judge signed an order preventing the public release of the surveillance video from the Twin Peaks restaurant taken on the day of the shootout. Breitbart Texas sent a Texas Public Information Act request to the City of Waco for that and other videos on June 4thand has reported about the City’s noncompliance with the request.
Breitbart Texas also reported that one of the bikers filed a civil rights law suit against the City of Waco, the McLennan County Sheriff’s department, and individual officers. Although the lawsuit has been dismissed, the biker reportedly said he will refile the lawsuit. His lawyer Clint Broden says the plaintiff, Matthew Clendennen, asked that the case be dismissed but only for procedural reasons.
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and an associate court judge. Follow her on Twitter@LanaShadwick2